Judgment The petitioner is a licensee of a country spirit shop at Durgapur, which shop is known as Viringhee Country Spirit Shop and is located at Viringhee, Durgapur, Burdwan. This license was granted to the petitioner by the Collector of Excise, Burdwan, under Bengal Excise Act, 1909 and rules framed thereunder. It appears that at the time of the issue of the Rule, which was on 14th March, 1975, licence, which was valid and was held by the petitioner, was operating. Such license would be available from Annexure-A to the petition. It haft been stated that the said license was operative on the date as mentioned above on due renewal. 2. It is the case of the petitioner that the license for country spirit is rigidly regulated and controlled by the provisions of the Bengal Excise Act 1909 (hereinafter referred to the said Act) and the Rules framed thereunder which would also hereinafter be described as the said Rules. The petitioner has stated that in terms of the conditions of the license, he could not in fact he was not authorized to act in violation of them either in regard to the parties to which country spirit is required to be sold or for charging the price thereof and to choose his customers. In fact, the petitioner has stated that he was required to sell country spirit to anyone tendering money except to those who are debarred from getting such supply according to the said Act and the said Rules. 3. The petitioner has stated that in course of his dealings as aforesaid he was required to purchase country spirit only from the wholesalers, appointed by the Government and as mentioned above not only the selling prices but also the purchase prices are regulated and controlled by the Government and the petitioner has no option to sell such country spirit to any other than those as mentioned above. These apart, the petitioner has stated that he cannot sell more than the prescribed quantity either to any person or he cannot sell on credit or receive may pledge for payment of the price thereof except money. These apart, the petitioner has stated that he cannot sell more than the prescribed quantity either to any person or he cannot sell on credit or receive may pledge for payment of the price thereof except money. In view of the above it has been claimed by the petitioner that such sale as effected by him cannot constitute sale either in the legal or any other same and further more when any violation of the conditions of license or the said Act and the said Rules would subject him to forfeiture of the said license and would expose him to the various penalties as prescribed. There is no doubt that the petitioner cannot also, unlike other shops, keep his shop or the business open apart from the restricted hours as required under the concerned license. The petitioner has categorically stated that he is required to transact under variousstrains and restrictions and since the sale or transaction by him cannot be called a sale either in the legal or any other sense so the provisions of Sales-Tax Act should not be made or held to be applicable on sales effected by him. It is his categorical case that the restriction as imposed on the business and as mentioned hereinbefore, would be restrictions unreasonably imposed on his trade and as such, such restrictions should be held and found to be unconstitutional. He has also stated that such restrictions as imposed to constitute and operate as denial to him of his fundamental right of Freedom of Trade and Commerce and as such the levy of sales-tax which is sought to be made and in fact, is being made, is ultra vires the Constitution of India and should thus be struck down. 4. The petitioner has further stated that the transactions made by him are not "Sale" within the meaning of Indian Sale of Goods Act, 1930 or entry 54, 7-Schedule List III of the Constitution of India and the corresponding provisions of the Government of India Act, 1935. 4. The petitioner has further stated that the transactions made by him are not "Sale" within the meaning of Indian Sale of Goods Act, 1930 or entry 54, 7-Schedule List III of the Constitution of India and the corresponding provisions of the Government of India Act, 1935. He has stated that the Bengal Finance Sales Tax Act, 1941 (hereinafter referred to as the said 1941 Act) as enacted in 1941 by the then Provincial Legislature of Bengal, expressly exempted the sale of country spirit by excluding such sale in item 25 of Schedule-1 of the said 1941 Act and such exemption continued until 1971 when by an amendment of the said 1941 Act known as West Bengal Taxation Laws (Amendment) Act of 1971, the said item was purported to be deleted with the intention of imposing of sales-tax on sale of country spirit. The petitioner has stated that understanding such steps to have been taken in a bona fide manner, he took out the registration under section 7 of the said 1941 Act and became a registered dealer. Thereafter, it has been stated, that the petitioner, under mistake of law, from time to time had paid a sum of Rs.2,77,670.04 P., to the credit of Commercial Tax Officer, Asansol, on filing necessary returns duly. 5. It has been claimed that after that in about the month of February, 1975, the petitioner has learnt that in Civil Rule No. 6862 (W) of 1961 reported in (1974) 34 S.T.C. 161 , the said West Bengal Taxation Laws (amendment) Act, 1972, in so far as it purported to delete country spirit from entry 25 Schedule-1 of the said 1941 Act, has been observed to be ultra vires the Constitution of India. As such the petitioner has claimed that the Respondents are under an obligation to refund the said sum of Rs.2,77,670.04 P. along with the sum of Rs.23,635.86 which the petitioner has paid to respondent M/s. Carew's and Co. Ltd., of Asansol for payment to Commercial Tax Officer concerned. It has also been claimed that in view of the above the respondents concerned are also under an obligation not to demand any sales-tax from the petitioner, in respect of sale and purchase of country spirit. Ltd., of Asansol for payment to Commercial Tax Officer concerned. It has also been claimed that in view of the above the respondents concerned are also under an obligation not to demand any sales-tax from the petitioner, in respect of sale and purchase of country spirit. It has also been claimed by the petitioner that even inspite of necessary demand being duly made, such refund as mentioned above has not been received by the petitioner and in fact, justice has been denied in his case. It is also true that after the incorporation of the Amendment Act as mentioned above, the petitioner has applied for registration. But he has stated that such registration was also applied for on the mistaken view or idea. The petitioner has stated further that in the fact and circumstances of the case the Commercial Tax Officer concerned was bound to grant him registration earlier but he acted wrongly in granting such registration on 4th September, 1972 and in the meantime due to the unfortunate restriction, M/s. Carew's & Co. Ltd., had collected from him the amount as mentioned in paragraph-15 of the petition on account of sale or for the sale of country spirit. 6. In view of the above the petitioner has claimed that the respondents concerned are under statutory obligation to refund the total sum of Rs.3,01,305.90 P. which has been paid to the Commercial Tax-Officer, either by the petitioner or through the respondent M/s. Carew's & Co. Ltd. 7. No affidavit-in-opposition appears to have been filed by the answering respondents. But in the proceeding, an application was made for variation or modification of the interim order which was issued at the time of the issuing of the rule and an opposition to the said application was filed by the petitioner on 5th January, 1976. Thereafter, there has been a supplimentary affidavit filed for and on behalf of M/s. Carew's & Co. Ltd., and also supplimentary affidavit to the same by the petitioner. By agreement of parties the statement as contained in the above records have been treated as pleadings in this proceeding. 8. The respondent M/s. Carew's & Co. Ltd., has stated that at all material times it had and still hall, amongst others, a Distillary in Asansol, wherein India made foreign liquors are manufactured in addition to country spirit. By agreement of parties the statement as contained in the above records have been treated as pleadings in this proceeding. 8. The respondent M/s. Carew's & Co. Ltd., has stated that at all material times it had and still hall, amongst others, a Distillary in Asansol, wherein India made foreign liquors are manufactured in addition to country spirit. It is their case that country spirit is not made for export outside the State of West Bengal. But India made foreign liquors are exported to other states of India. This respondent No. 3 has stated to have held at all material times an excise bond in Calcutta wherefrom India made foreign liquor is exported to other States of India. It has been claimed by the respondent No.3 that country spirit is a rigidly controlled item under the said Act and nobody has a right or authority to act in contravention of the provisions in the matter of Sale of Goods or price thereof. In fact, it has been stated that this respondent is one of the wholesalers appointed by the State Government in regard to the manufacture of country spirit and the same are being sold only to retail vendors in terms of permits or licenses as required under the said Act. It has been claimed that the claim by the petitioner in respect of refund was inappropriate and unauthorised and in fact, the petitioner and none else was under a liability to pay sales-tax under the concerned laws. It is also the case of this respondent that the liability of payment of sales-tax, being liability of the retail vendor, they have no obligation in the matter of payment or securing the same for any sale of country spirit by the petitioner. The allegations as contained in the above pleading by the respondent No.3 have been denied by the petitioner through his affidavit dated 4th January, 1976 and he has reiterated that in view of the law as it stands in the determination in the case of (1) Calcutta Country Spirit, Opium and Drugs Association Ltd., v. State of West Bengal and Others, (1974) 34 S.T.C. 161 , no sales-tax can be realised on sale of country spirit and such imposition has now been declared ultra vires. There was justification in the claim of the petitioner as mentioned above. There was justification in the claim of the petitioner as mentioned above. There was a still further affidavit to the above pleading of the petitioner filed for and on behalf of respondent No.3, Carew's Co. Ltd., wherein the earlier stand as taken by this respondent has been reiterated and it has also been contended that there was no justification for the claim as made by the petitioner even on the basis of the determination as mentioned above. 9. After the above pleadings, by an affidavit dated 16th February, 1976, a further supplimentary affidavit has been filed by the petitioner. In this affidavit, the petitioner has made statements in respect of his financial character and stability and has also sought to disclose records in support of such statements. The statements as contained in the supplimentary affidavit 88 mentioned above have also been sought to be denied and disputed by the respondent No.3, through the supplimentary affidavit dated 1st March, 1976. 10. Initially and under section 6 of the Bengal Finance (Sales-Tax) Act, 1941, no tax was payable under that Act on the sale of goods as specified in the First Column of the Schedule, subject to the conditions and exception, if any, set out in the corresponding entry and the cloumn thereof and under item 25 of the first schedule country liquor (including Tari and pachwai, portable foreign liquor) including mitigated wines, gania, excise opium (excluding preparation of opium), Mang and charas, were exempted from payment of tax or were tax free goods. Thereunder, in 1972 the said item 25 of the schedule was ommited by section 3(5) of the West Bengal Taxation Laws (Amendment) Act, 1972 and as of consequences thereof the items or article as mentioned above became taxable. The validity of the West Bengal Taxation Laws (Amendment) Act, as mentioned hereinbefore was challenged and ultimately by the determinations in the case of Calcutta Country Spirit, Opium and Drugs Association Ltd. v. State of West Bengal and Others, (1974) 34 S.T.C. 161 such amendment purporting to bring the sale of country spirit, amongst other articles, under the incidence of sales-tax, was held to be ineffective, irregular and void. The petitioners in that case were licensees in country spirit, they filed the writ petition and challenged the validity of section 3(5) as mentioned above, which sought to bring sale of country spirit, amongst other articles, under the incidence of Sales-Tax contending inter alia that (1) the sale made by them as licensees was not a sale within the meaning of the Indian Sale of Goods Act, 1930 and, therefore, the State Legislature had no authority to impose the tax and (2) the tax levied under the section imposed restrictions on the freedom of trade, commerce or intercourse and has no previous sanction of the President under Article 304(b) of the Constitution nor any subsequent consent of the President under Article 255 having been taken, the said section was unconstitutional. In that case the determination as mentioned above, has been made holding the sale effected by the petitioners as a sale in the legal sense amongst others. In this case the learned Judge was of the opinion that the imposition of tax at 6% against profit varying from 5, 7 to 8% on country spirit directly restricted the impeded the free flow of trade and the requirement under Article 304(B) was not complied with. 11. Mr. Bose, who argued the case on behalf of the petitioners, contended, ralying upon the determination us mentioned above that the imposition as made in the instant case, as such was invalid; as such imposition was made under invalid or incompetent statute. To suppliment his arguments, he contended that the West Bengal Taxation Laws (amendment) Act, 1972. having been found to be ultra vires, the authority concerned cannot be permitted or have the right to demand further or any payment on account of sale-tax from the petitioners and as such whatever amount, the petitioners have paid on mistaken belief or view of law should be refunded. He further argued that the invaliding of the Act in question could not be cured by the amending provisions of the West Bengal Taxation Laws (Amendment) Act, 1972, without further and fresh re-enactment of the Bengal Finance Sales-Tax Act, 1941. It was his further submission that as the transactions made by the petitioners do not constitute sale of goods within the meaning of Sale of Goods Act, 1930 and as such the State Legislature had no power or legislative competence to impose sales-tax on such sales. It was his further submission that as the transactions made by the petitioners do not constitute sale of goods within the meaning of Sale of Goods Act, 1930 and as such the State Legislature had no power or legislative competence to impose sales-tax on such sales. It was also argued by him that the imposition as made would be hit under Art. 301 of Constitution of India and would not be saved by Article 304 as (A) there is no public interest in such imposition, (B) there is no reasonableness in such imposition and, (C) sanction or assent of the President of India has not been obtained. It was also contended by Mr. Bose that tax on sale in the instant case could not be imposed because a sale to be liable to taxation by State Legislature in exercise of powers under entry 48 of List II of Schedule VII of the Government of India Act, 1935 or Entry 54 of List II of Schedule VII of the Constitution, must be a sale in the local sense and not sale in the popular sense. 12. The question of levy on sale of country spirit after the West Bengal Taxation Laws (amendment) Act, 1972, which came into force on 7th August, 1972, was also in issue, as mentioned by Mr. Bose in the case of (2) Chandi Charan Sarkar and others v. Commercial Tax Officer, Suri and others, 82 CWN 273. In this case, the petitioner was a registered dealer in Paclari under a license under the Bengal Finance Sales-tax Act, 1941 on condition of selling paclari in accordance with the price fixed by the Excise Commissioner. The petitioners contended that (1) they were not in a position to recover the sales-tax from the customers under the tenure of the licence and as such the levy as made was a restraint on trade and provisions imposing liability for sales-tax on them was void and (2) as they were not in a position to recover the taxes from the customers for the goods which had already been sold in the period between 7th August, 1972 and 6th June, 1974, there should be no demand of sales-tax for sales made during that period. On a consideration of the Article 2 section 86 of the said Act with retrospective effect, the learned Judge observed and held that the imposition of sales-tax and surcharge under the West Bengal Taxation Laws (Amendment) Act, 1972 did not put any restraint on pachai dealers to recover the sale tax from their customers and was not void. It has also been observed that the fact that retrospective levy of tax did not afford any opportunity to the dealers to pass on the tax to their customers, has no relevance in considering the legislative competence of the levy. This determination was sought to be distinguished Mr. Bose contending amongst others that the said Act has nothing to do with sales-tax. 13. Apart from the cases as mentioned above Mr. Bose also cited the determinations in the case of (3) the State of Madras v. N.K. Notoraj Modialia, A.I.R. 1969, S.C. 147 for the purpose of establishing the scope of Articles 301, 302 and 303 (1) of the Constitution of India. Wherein it has been observed that section 8(2), (a) and 8(5) of the Central Sales-Tax Act, 1956 are ultra vires. This was incidentally the majority view. Apart from the above, reference was also made by Mr. Bose to the determinations in the case of (4) Dipchand v. State of U.P., A.I.R. 1950 S.C. 648 wherein it has been observed by majority that the combined effect of Articles 13,31,245(1) and 246 would be that the Parliament and the Legislature of States have power to make Laws in respect of any of the matters enumerated in the relevant list in the 7th Schedule and that, power to make laws is subject to the provisions of the Constitution including Article 13 i.e., the power is made subject to the limitations imposed by Part-III of the Constitution and the general power to that extent is limited. It has been observed further that a legislature, therefore, has no power to make any law in derogation of the injunction contained in Article 13. 14. Mr. Dutta appearing for the respondents as mentioned above also relied on the determinations in the cases of Calcutta Country Spirit. It has been observed further that a legislature, therefore, has no power to make any law in derogation of the injunction contained in Article 13. 14. Mr. Dutta appearing for the respondents as mentioned above also relied on the determinations in the cases of Calcutta Country Spirit. Opium and Drug Association Ltd., v. State of West Bengal and Others (Supra) and Chandi Charon Sarkar and Others v. Commercial Tax Officer, Suri and Others (Supra) and contended that in view of the said Act passed in 1974 with retrospective effect which has also been noted in Chandi Charan Sarkar's case. The amendment which was sought to be introduced or achieved through the West Bengal Taxation Laws (Amendment) Act, 1972, the levy on country spirit has been made duly, properly and with jurisdiction. There is no dispute about the facts leading to the deletion of item 25 of the schedule as mentioned above and so also the subsequent amendment as mentioned above and the determinations as referred to hereinbefore made by this court. It was also contended by Mr. Dutta that in view of the background or the surrounding circumstances leading to sale, the sale as sought to be effected for in the instant case should be deemed to be a sale which would be subject to the levy as made. To establish further, that the West Bengal Taxation Laws (Amendment) Act, was duly promulgated and that too in proper use and exercise of power and jurisdiction, Mr. Dutta relied on the principles as mentioned in the case of (5) Hiralal Rattanlal v. Sales-Tax Officer, Section III, Kanpur and Another, (1973) 31 S.T.C. 178 . Section 3 of the I-P Sales-Tax Act, 1948, provides for the levy of multi point Sales tax section 3-D provided for a single points tax at the stage of first purchase by a dealer in respect of food-grains and certain other goods and enable the State Government to notify such goods. It appears that by a notification dated 1st October, 1964 (food-grains) was specified under section 3-D for single point tax at the stage of first purchase. The Sales-tax authorities sought to bring to tax, on the basis of the said section and the notification the first purchases of processed or split food-grains including Dal on the ground that they constituted a separate item indepeneent of the unprocessed or split food-grain;. The Sales-tax authorities sought to bring to tax, on the basis of the said section and the notification the first purchases of processed or split food-grains including Dal on the ground that they constituted a separate item indepeneent of the unprocessed or split food-grain;. Such a levy was held by the Allahabad High Court to be invalid after the decision in the case of (6) Tilakchand Prasan Kumar v. Sales-tax Officer. Hatras, District Aligar (1970) 25 S.T.C. 116. After that decision the U.P. Sales-Tax (Amendment and validation) Act, 1970, replacing an ordinance, was passed and explanation II was added to section 3-D(1) providing that split or processed food-grains shall be deemed to be different from split or unprocessed food-grains and that nothing in sub-section 1 shall be construed to prevent the imposition, levy or collection of the fact in respect of the first purchases or split or processed food-grains, merely because tax had been imposed, levied or collected earlier in respect of the first purchases of those food-grains in their unsplit or un-processed form. Section 7 of the amending Act also validated earlier levies and declared notification issued under section 3-D to be deemed to have been issued under the Act as so amended. The High Court dismissed the writ petition in which the validity of the amendment was challenged and on an appeal the Supreme Court also affirmed such decision. Mr. Dutta in fact, and on a reference to the above decision contended that the facts relating to the two amending Acts or the levy as made on the basis of such amendments, being in pari material, the determinations as made by the Supreme Court in the case as referred to should be followed and on that basis no interference should also been made in this proceeding. 15. Mr. 15. Mr. Dutta, in addition to the above relied on the determinations in the case of (7) State of Punjab and others v. Diwans Modern Breweries Ltd., A.I.R. 1979, S.C. 1 which was a determination on the provisions of Punjab General Sales-Tax Act, 1948, and wherein, it has been observed that sale of foreign liquor by a wholesale dealer to retail dealers, and prices fixed by competent authorities is sale and as such, authorities would be subject to sales-tax, apart from relying on the determinations in the case of (8) Lakhanlal v. State of Orissa, A.I.R. 1977 S.C. 722 and (9) Mashirwar v. State of M.P. and Others A.I.R. 1975 S.C. 360. In Lakhanlal's (Supra) case which was one under the Bihar and Orissa Excise Act, 1915, it has been observed that the State has the exclusive right or privilege to manufacture, store and sell liquor and to give right to its license holders on payment of consideration with such conditions and restrictions for its regulations as may be necessary in the public interest which view again has been taken or arrived at by following the determinations in Nasweri's (Supra) case. The two cases as mentioned above have laid-down the rule that a citizen has no fundamental right to do business in liquor and on the basis thereof Mr. Dutta suggested that here in the instant case, since the petitioner has no fundamental-right to transact in liquor or to carry on such business, the present application, on the basis of the allegations or submissions, would not also be maintainable. 16. Mr. Bose, in reply contended and that too on a reference to the determinations in the case of (10) Artiabari Tea Ltd., v. State of Assam, A.I.R. 1961 S.C. 232, (11) Khaverbari Tea Ltd., and Another v. State of Assam, A.I.R. 1964 S.C. 925, that the arguments as advanced by the Mr. Dutta would not be justified. 17. Thui, on the basis of the arguments as advanced and the primary point to be decided in this case, there are two judgments of this Court. The earlier one is the case of Calcutta Country Spirit, Opium and Drugs Association Ltd., v. State of West Bengal & Ors. (Supra) and the later is the case of Chandi Charan Sarkar & Ors. v. Commercial Tax Officer, Suri & Ors. (Supra). The earlier one is the case of Calcutta Country Spirit, Opium and Drugs Association Ltd., v. State of West Bengal & Ors. (Supra) and the later is the case of Chandi Charan Sarkar & Ors. v. Commercial Tax Officer, Suri & Ors. (Supra). In the earlier case, the effect of the amendments by the West Bengal Excise Amendment Act, 1974, incorporated in the said Act which was one of the relevant considerations has neither been noted nor considered. By the West Bengal Excise Amendment Ordinance, 1974, which came into force on 6th June, 1974 and was subsequently enacted as the West Bengal Excise Amendment Act, 1974, an explanation has been added to section 34 of the said Act with retrospective effect to the effect that the price of an intoxicant as fixed by Rules made under section 34 (b) of the said Act, shall be deemed to have always been exclusive of any tax, surcharge, additional surcharge or any other imposition on the sale or purchase of such intoxicant levied under any law for the time being in force. 18. The determination made in the case of Chandi Charan Sarkar & Ors. v. Commercial Tax Officers Suri & Others (Supra), in the facts of this case and also on consideration of the effect of the amendment as mentioned hereinbefore, appear to be more appropriate and as such, I hold that because of the amendment incorporated to the said Act and more particularly to section 84, with retrospective effect, the imposition of Sales Tax and surcharge under the West Bengal Taxation Laws Amendment Act, 1972, did not put any restraint on the concerned dealers to recover the same from their customer would not be void. These apart, I do not find, on the application of the principle as enuntiated through the cases as cited at the Bar, that the promulgation of the West Bengal Taxation Laws (Amendment) Act, 1972 was due proper and with jurisdiction and authority. 19. In view of the above, the argument of Mr. Bose, so also the application fail and as such the Rule is discharged. There will be no order as to costs. The prayer for stay of operation of the order is refused.